S. Sridharan vs Union of India (UOI)

V.S. Sirpurkar, J.—The Writ Appeal should have ordinarily been filed by the Respondents. However, the writ Petitioner himself filed this writ appeal. The Appellant has a land and bungalow in Pondicherry. Section 4(1) notification was published in respect of that property on 28.6.1983. The writ Petitioner immediately filed a writ petition and obtained stay. The stay was granted on 23.4.84. The writ petition pending in this Court was dismissed for default on 12.1.91. Naturally the interim order passed preserving his possession alone also got automatically cancelled. The writ Petitioner then applied for restoration on 10.4.91 which W.M.P. was ordered upon on 12.4.91 when the learned single Judge of this Court granted a limited injunction in the sense it was stated in that order that if the possession is not taken already by the Government, the Government shall not take possession until further orders. Therefore, a limited injunction was in that sense granted against the Government. This was because the Government came stiffly opposing the grant of injunction afresh by W.M.P. No. 8742/91 on the ground that the Government had already walked into the premises and taken the premises on 10.4.91 itself. Be that as it may, instead of giving further injunction, the injunction came to be given though on limited terms. Ultimately, even that injunction was dismissed and the injunction petition W.M.P. No. 8742/91 was dismissed by another learned single Judge of this Court on 18.8.92. The writ petition was ordered to be put up for final hearing by the learned single Judge on 3.9.92. Ultimately, the writ petition was heard by the learned single Judge of this Court and was allowed by his order dated 28.9.93 in the sense that the learned single Judge quashed the Section 6 proceedings by holding that there was no proper enquiry u/s 5A. The learned single Judge further, in the concluding portion of the judgment, held that it was only Section 6 notification which was being quashed, but, Section 4(1) notification was being preserved and if the Government can so feel, it can hold fresh enquiry. Paragraph 33 of the order reads as under:

In such an event, the declaration u/s 6 of the LA Act impugned in this Writ Petition is quashed and the Respondents are left with liberty to prosecute the further proceedings under LA Act, on the basis of the notification u/s 4(1) thereof, if they desire so to do.

The above para is the bone of contention in the present appeal. The Appellant states that this observation could not have been made by the learned single Judge on the day he allowed the writ petition i.e., on 28.9.93, because on that day three years had elapsed from the date of Section 4 (1) notification and no fresh Section 6 notification could have been passed because of the specific bar u/s 6 of the Land Acquisition Act.

The Learned Counsel for the Appellant Mr. G. Rajan points out that under unamended Act the said limitation was for three years in the sense that Section 6 notification had to be passed within three years of the passing of Section 4 (1) notification. After the amendment now this limit has been reduced to one year. It is an admitted position that since Section 4(1) notification in this case is pre-amendment notification the limitation would be three years.

According to Mr. G. Rajan, this three years'' time was over when the learned single Judge allowed the writ petition quashing Section 6 notification. According to the Learned Counsel, at the same time the learned single Judge should have also quashed Section 4(1) notification as thereafter no notification u/s 6 could have been passed as three years time had already elapsed.

The learned Government Pleader of Pondicherry opposed this appeal and pointed out that on 28.9.93 when the learned single Judge allowed the writ petition of the Petitioner, Appellant herein, three years had not elapsed, particularly, because there was stay operating from 23.4.84 to 12.1.91 and thereafter from 12.4.91 upto 18.8.92. He states that the period between these two spans will have to be excluded because of the provisions of Section 6 and more particularly in Explanation 1 to Section 6.

Considering the rival submissions, it is clear that prima facie the notification is beyond three years, but, if the period of stay is excluded then the notification does not get barred as it is well within three years. It will be seen that if the period between 12.4.91 when the limited injunction was granted and 18.8.92 when that injunction was vacated is counted against the Petitioner because of the stay, then the order passed on 28.9.93 would be well within three years. We are, therefore, of the clear opinion that the learned single Judge was well justified in saving Section 4(1) notification and quashing only Section 6 notification. Nothing was said by the learned single Judge against this because it is clear that the proceedings were challenged on the sole ground that there was no proper enquiry u/s 5A. The learned single Judge was well justified in preserving Section 4(1) notification and proceeding to quash only Section 6 notification. It was not necessary for the learned single Judge to quash even Section 4 (1) notification as three years time has not elapsed on 28.9.93. If this is so, the writ petition must fail and accordingly it is dismissed.

It is pointed out by the learned Government Pleader that thereafter the matter is proceeded and a fresh notification u/s 6 came to be passed on 28.4.94 after enquiry. It is pointed out by Mr. Rajan that W.P. No. 15300/95 has been filed by him challenging the said Section 6 notification and the proceedings under the Land Acquisition Act and the writ petition is pending. Mr. Rajan prays that even W.P. No. 15300/95 should be decided by us. According to us, it is not necessary for us to do so. Though the learned single Judge had posted the said writ petition along with the appeal, we feel that the Writ Appeal is in the limited sphere, while number of other questions would be required to be decided in W.P. No. 15300/95 it would be done by the learned single Judge as per his jurisdiction. That writ petition will be separated and posted before the learned single Judge. Similarly, W.P. No. 20652/93 was also filed by the writ Petitioner against the 5A enquiry. Even that writ petition which is unnecessarily posted along with this writ petition shall be sent back, so that these two writ petitions, W.P. No. 20652/93 and W.P. No. 15300/95 shall be decided by the learned single Judge to whom they are being sent. The Writ Appeal is therefore dismissed. No costs. Consequently, CM.P. No. 17718/93 is also dismissed.

It will be better if the Writ Petitions are decided as early as possible, however, within six months from today.